DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qantas Airways Limited
v
Mathew Mazzitelli
(C2020/3401)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

SYDNEY, 19 MAY 2020

Appeal against decision [2020] FWC 2413 of Deputy President Anderson at Adelaide on 8 May 2020 in matter number C2020/3189.

Introduction

[1] Qantas Airways Limited (Qantas) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Anderson on 8 May 2020 1 (decision). In the decision, the Deputy President rejected a jurisdictional challenge made by Qantas to the arbitration of an application made by Mr Matthew Mazzitelli pursuant to s 789GV(3) of the Fair Work Act 2009 (FW Act) and determined that he would make arrangements for the application to be arbitrated should further conciliation not be successful in achieving a resolution of the dispute which was the subject of the application. Qantas contends that permission to appeal should be granted, the appeal upheld and the decision quashed because, in summary, the Deputy President erred in a number of respects in rejecting Qantas’ jurisdictional objection and denied Qantas procedural fairness.

The statutory framework

[2] The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 amended the FW Act by introducing a new Part 6-4C, Coronavirus economic response. Section 789GB provides that the object of the Part is, in summary, to make temporary changes to assist the Australian people to keep their jobs and maintain their connection to their employers, during the “unprecedented economic downturn and work restrictions arising from: (i) the COVID-19 pandemic; and (ii) government initiatives to slow the transmission of COVID-19”; to help sustain the viability of Australian businesses; to continue the employment of employees; to ensure the continued operation of health and safety laws during the pandemic; and to help ensure, where reasonably possible, that employees remain productively employed during the pandemic and continue to contribute to the business of their employer where it is safe and possible for the business to continue operating.

[3] The Part allows qualifying employers to give directions to employees and make certain requests of them. The “jobkeeper enabling directions” which the Part empowers qualifying employers to make fall into three categories:

• a “jobkeeper enabling stand down” under s 789GDC, by which an employee may be required not to work on a day they would usually work, work for a lesser period on a day, or work a reduced number of hours overall (which can be nil);

• a direction under s 789GE that an employee perform other duties that are within the employee’s skill and competency and are reasonably within the scope of the employer’s business operations; and

• a direction under s 789GF that the employee work at a different place, including the employee’s home, provided that it is suitable for the employee’s duties and does not require the employee to travel an unreasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCFB 2628
Decision Date: 19 MAY 2020

CaseChat Overview and Summary

Qantas Airways Limited has appealed against a decision of Deputy President Anderson of the Fair Work Commission, issued on 8 May 2020 in Adelaide. The matter, numbered C2020/3189, arose from a dispute concerning the employment status and termination of an employee, Mazzitelli. Qantas, the appellant, sought to challenge the Commission's ruling that Mazzitelli was unfairly dismissed and that Qantas had breached the Fair Work Act 2009 by failing to provide appropriate notice of termination.

The primary legal issue before the court was whether the employee, Mazzitelli, was an independent contractor or an employee, as this distinction would determine the applicable employment protections and the validity of the termination. Additionally, the court examined whether Qantas's actions in terminating Mazzitelli's engagement complied with the procedural and substantive requirements of the Fair Work Act 2009. The court had to consider the nature of the relationship between Qantas and Mazzitelli, the control exercised by Qantas over Mazzitelli's work, and the economic reality of their arrangement.

In its reasoning, the court examined the various factors that contribute to determining employment status, including the terms of the contract, the degree of control exercised, and the economic dependency of the worker on the employer. The court found that Mazzitelli was an employee, not an independent contractor, based on the substantial control Qantas exercised over Mazzitelli's work. Furthermore, the court held that Qantas's failure to follow the appropriate procedures for termination constituted an unfair dismissal under the Fair Work Act 2009. The court concluded that the decision of the Deputy President was correct and dismissed the appeal by Qantas.

The final orders of the court were to dismiss the appeal, affirm the decision of the Deputy President, and uphold the findings that Mazzitelli was an employee, that the dismissal was unfair, and that Qantas breached the Fair Work Act 2009. The court also confirmed the Deputy President's orders for Qantas to compensate Mazzitelli for the unfair dismissal and to pay the costs of the appeal.

Orders